Crimes Amendment Bill (No 2)

Part 1 is the substantive part of this bill. It covers the significant changes that are being proposed to the rules around sexual conduct. The National Party view is that these changes are being made with insufficient public consultation, and we do not think that sufficient consideration was given in the select committee process, either. We are worried that there may be serious unintended consequences and the risk of disturbing quite settled case law and legal concepts. We think that some of the provisions in the bill are meritorious, and we are disappointed that the part by part motion means we cannot support the Minister’s amendments in the areas we think are particularly important.

Much of this legislation is based on a discussion paper that was approved by the Minister in 2002 and released to a number of Government departments and groups. I wonder whether the Minister would take a call and tell us which organisations and departments received copies of the 2002 discussion paper on the proposals in the bill, and what sorts of submissions were received, particularly on the proposal to effectively decriminalise some under-age sexual conduct. Who was in favour of that and who was against it, and did the Government really have to carry on with it? Could the Minister take a call and explain why he approved the release of the discussion paper, which included a proposal to legalise brother-sister sex for those over 20? I know that the Minister does not support that, but I do not know why he allowed it to remain in the discussion paper. Surely Mr Goff should have said to the Ministry of Justice: “That is not Government policy. Don’t put it in there. It’s not going to happen.” Maybe the Minister could take a call to explain that.

We are also looking for an explanation from the Minister about the issue of dependent family members and protecting young people from the predatory behaviour of those who may have some sort of power or influence over them. Essentially, his proposals mean that it will now no longer be an offence for foster parents to have a consensual sexual relationship with an 18-year-old foster child for whom they have cared for many years. I wonder whether the Minister could explain why the current prohibition relating to age, which is age 20 at present, should be dropped to age 18.

Could he also explain, in relation to his proposed sexual grooming amendments—which we would have liked the opportunity to support through the bill—why he would allow that sort of grooming to happen, if it ever were to happen.

I would also like the Minister to answer some questions about the potential unintended consequences of what a dependent family member is. I think there is some confusion about that, because section 131A(1), in clause 7, states that family members are “… of the same family, whanau, or other culturally recognised family group …”. One of the Minister’s own officials told the Law and Order Committee that a whānau was people who lived on a marae, and I am wondering how on earth that sort of advice could form the basis of this legislation.

So there are, I think, quite considerable matters that the Minister needs to address, and over the next hour or two of this debate members from this side of the Chamber will be seeking an explanation from the Minister on a whole lot of issues, including the “dependent child” matter and the “reasonable belief” defence for sexual conduct. Right now a small provision exists for accused persons under the age of 21, whereby if they believed that the other person was 16 and they had taken reasonable steps to ascertain that person’s age, and the conduct was consensual, then there is a defence. The Government is proposing that that defence apply to everybody. It now means that whereas at present a 45-year-old man has no defence in law for sexual conduct with a 15-year-old girl, under the bill’s proposals that chap will have a defence in law, provided he reasonably believed she was 16 or older and he had, for example, checked her false ID.

The reason we wanted this legislation to go back to the select committee is that no consideration was given to alternatives for addressing the situation of a genuine mistake, which I know that the Minister has considered, such as having it included as a mitigating factor at sentencing. The select committee did not look at any of that, and there has been insufficient discussion with the public about the merits or otherwise of that provision.

I appreciate that members of the public may be wondering why National is voting against this legislation. I have to say that we cannot possibly support legislation that would allow—and this is the reality of it—a 45 or 50-year-old man to approach a child prostitute, then claim he had a defence. That is not possible under the existing law. That is the important point: it is not possible under the existing law.

That prohibition—that the defence does not apply to those aged over 21—has never caused a problem, but now the Government seems to think it should be extended right across the board. Government members then wonder why New Zealanders are deeply worried about the values of this Government and about the direction they are taking this country.

We saw that in the John Tamihere article. He merely articulated the concern of mainstream New Zealanders that this Government simply has no idea what people think. It runs its narrow agenda based on, I guess, the common rooms of the universities—the discussions that occur there and that essentially should stay there. But no, this Government wants to make those minority agendas the widespread views.

One of the features of that, frankly, is sexual liberation. That has always been one of the fundamental agendas of the politically correct. It undermines family life. That is the reality. The Government will look at each and every part of the law. How does it undermine family life? How does the politically correct agenda undermine family life? Well, these are some of the ways: by allowing broader defences, by allowing more licentiousness, by allowing prostitution, by making it easier for predators to escape punishment, and by allowing defences. That is what the Government has done in this legislation.

The Government may say that we are simply exaggerating. But we have seen since the Prostitution Reform Act a huge increase in child prostitution. The Government has only to ask the simple question of who preys upon those child prostitutes. My colleague, who lives in south Auckland, sees the problem on the streets. She knows the answer. Ironically, the Minister of Police, living in the same place, was not even aware that that police district had 1,000 uninvestigated cases, including 11 cases involving rape. That indicates the complete disconnection of this Government from the real problems facing our country. When we see these kinds of amendments being put into the law, we know that this Government is totally driven by a narrowly focused, politically correct agenda that it intends to foist on the entire country.

I would like to think that the other parties in this Parliament that are supporting this legislation will, at least in respect of this particular provision, say no.

💬 Ron Mark: What about the amendments?

I tell Mr Mark that my colleagues have been doing amendments. This is the sort of thing that should be stopped. The law, as it exists at present, is satisfactory. It takes into account the difficulties that young people may have. That is why the application of the law is limited to those aged under 21, and that is where it should stay. That is why we are voting against the bill.

I am pleased to take a call on this legislation, which ACT is supporting. It is not perfect; there are flaws in it. I would like the Minister to take a call to explain some particular points to me and the reason why those issues are in the bill, because ACT did not have a representative on the Law and Order Committee.

I am always supportive of anything that goes anywhere towards protecting children against sexual abuse by adults. There are two main areas that concern me. Firstly, I am pleased that the definition of “family” has been extended. I recently went to a tangi in south Auckland. One of the Māori women there sat down beside me, because she knew about the books I had written. She said that at a meeting at the marae a few weeks earlier the women had been discussing how not one child on that marae would not have been sexually abused by other people on the marae, and how they could not do anything about it.

The thing that concerns me about extending the definition of “family” is that it could extend the ability for perpetrators to get name suppression. One of the reasons why name suppression is sought is to protect the victim. It is usually given automatically if the victim is “a family member”. That is often the fault of the media, because when a person has interim name suppression the media will report, for example, that the victim was a 12-year-old niece. If the media did not report that, and stated that it was a 12-year-old girl, then it could report the name when name suppression was lifted. But when name suppression is subsequently lifted, the media cannot report it, because that would identify the victim. I argue that we should have something in this legislation, or it could come in at a later date—and I urge members to consider this—stating that name suppression can be given only when victims specifically request it, or when victims are under the age of 16 and could be identified. By extending the definition of “family” there is a danger that more accused people will get name suppression.

I would like the Minister to explain why the age of consent has gone from 20 to 18 when family members are concerned. I have some difficulty over that. In the case of doctors, for instance, if a doctor has a sexual relationship with a patient, no matter what age the patient is, that doctor can be struck off or will go before the Medical Practitioners Disciplinary Committee. For a doctor to have a sexual relationship with a patient is a real no-no, no matter what age the patient is. Could the Minister take a call to explain why the age of consent has come down from 20 to 18? For me it is not a reason to oppose the bill, but I am curious as to why that provision is included.

I do not agree with the National Party about the defence for a 45-year-old man having sex with a 14-year-old girl. I do not believe that the way the legislation is drafted is as loose as that. I would like the Minister to explain it. As far as I can see, leaving aside this issue of whether the girl is a prostitute, section 134A(2), in clause 7, states that it is not a defence if “the consent of the young person concerned was obtained by a false and fraudulent representation as to—(a) the nature and quality of the act concerned;”. To me, that does cover areas. That is used a lot in sexual abuse cases where stepfathers, foster parents, or someone who is known to the victim has said: “All fathers do this. This is what love means. All families do this. Don’t tell.” That is obtaining consent on a false representation.

Finally, I was recently in the United States. I just remind the Committee of the effects of child molestation. From some research done in the United States it has been estimated that the annual direct costs—admittedly it is not a definitive figure, because of the under-reporting and under-prosecution of child abuse—in the United States, including medical, police, court, and welfare costs, of all child abuse is $24 billion. If we look not just at the financial costs, we find that 26 percent of abused and neglected children become juvenile delinquents, and that 13 percent of violent crime can be linked to earlier child maltreatment. If we are serious in this country about getting tough on crime, we have to be serious at looking at why—

I would like to take an early call just to answer some of the questions that have been raised by, in particular, Mr Ryall, but also to note the comments that Deborah Coddington has just made, and to thank her for her support on a number of those issues.

The first issue raised by Mr Ryall, and something he proposed during the second reading debate, was that the bill should be referred back to the select committee because it had had insufficient consideration. I draw to the attention of the Committee that this bill was introduced to Parliament more than a year ago, and was referred to the Law and Order Committee more than a year ago. A total of 21 hours and 36 minutes were given to consideration of the bill. It was in the hands of the select committee whether it wanted to ask more questions and to take more time over those who made submissions. I received no complaints from people that they did not have the opportunity to be heard or to have their points raised with the committee. The select committee had every opportunity to cross-examine and ask questions of anybody appearing before it. That was in the committee’s hands, not my hands. The concept that this bill has been rushed through is just bizarre on the facts of the case that I have just explained.

Secondly, Mr Ryall raised his concern that there was a discussion paper that raised the question of the status of incest, and he rightly—to be fair to Mr Ryall—acknowledged that I was against narrowing the definition of incest. I think we need to maintain incest as an offence, not because of the classical reason of preventing inbreeding but because children in a family who are dependent have to be protected, regardless of whether there is a blood relationship or any other relationship. In fact, what we have done is much strengthen the definition of incest. At the moment, incest covers not simply sexual intercourse but any form of sexual connection. The member will be aware that under the old law all sorts of sexual abuse could have occurred if the child was over the age of 16, and it was totally lawful. Now we are providing greater protection.

Mr Ryall asks why we allowed a different point of view to come out in a discussion paper. I have to say that if a discussion paper was to reflect only everything I believed, and I did not tolerate it including anything I did not believe, it would not be much use as a discussion paper. That is why one has a discussion paper. One has within it different, and sometimes controversial, views. That is exactly what the Australians did, and other jurisdictions. Of course, after seeing the discussion paper and hearing some views, our Cabinet made a very clear cut and unanimous decision that, yes, of course, not only would we retain the law on incest but we would strengthen the law on incest.

I thank Deborah Coddington for her comments that she is pleased that the definition of family has been extended. Mr Ryall was having some trouble with the definition of family. New section 131A in clause 7 sets out the classical family membership in terms of parents, step-parents, foster parents, siblings, etc., then refers to members of the same family, whānau, or other culturally recognised family group. As Deborah Coddington rightly pointed out, that broadens out the definition to provide protection where it is needed. The section goes even further to include a situation where the child is living with the other person as a member of the other person’s family, and that other person has power or authority over him or her. Yes, of course we have broadened the definition, because our kids deserve the protection that that wider definition gives. Every child should be able to grow up in this society in a family that protects him or her—where the family, however it is defined, is a sanctuary—and not be subject to the sorts of appalling things we know have happened in the past, and, regrettably, still do happen.

In relation to the “reasonable belief” provision, once again we have toughened the law. I refer to the defence of “I reasonably believed that she was over 16.” It is too easy to say: “I reasonably believed that to be the case.” Now a person has to go through the steps that that person took to ascertain whether the person was 16 or over. So this law is, again, tougher in protecting those who are under age.

Mr Ryall raised the question of a particular change that will be made. Under the previous law, if a person was 1 day over the age of 21, there was no defence at all, even if one could demonstrate that one had reasonably and genuinely believed that a person was not under age—say, one had asked for her driver’s licence, had checked it, and it had stated that that was so. Unfortunately, there is the situation—and I think Mr Mark agrees with me on this—where some young women, some girls out there, can look a lot older than 16 and do use false identification. If a person acts in good faith, but is conned by an under-age person, why should there be no defence to protect that person? Of course there should be a defence, and it should not be arbitrarily restricted to those who are under the age of 21.

I have no better authority on that than David Farrar, who is the co-chairman of the liberal group within the National Party—with Katherine Rich, I think—a former staffer of Don Brash, a long-time member and supporter of National, and a worker in the office of Leader of the Opposition, who made the point that I have just made. It is nonsense to say that a person who is 21 years and 1 day old has no defence at all, if the young woman concerned looked like she was 18 and presented the person concerned with a driver’s licence that stated that. That is why the old law did not make sense—not just the fact that the arbitrary threshold was contrary to our New Zealand Bill of Rights Act.

I want to go through a couple of points, and I also start by thanking the Minister for taking a call. Members come into this Chamber so often for the Committee stage, and the Labour Ministers tend to sit there and do nothing. I actually saw one here one evening doing her knitting at that table, as opposed to doing the work she is paid $140,000 a year to do. I congratulate the Minister on taking a call. It is a welcome change.

I have gone through some of the aspects of Part 1 that New Zealand First cannot vote against. As difficult as some of those clauses may be to read for some of us, we have had to deal with that in the 21 hours the committee sat. I take issue with the Minister when he said we had enough time. Twenty-one hours to consider the bill, particularly as the debate unfolded, and we had more and more questions, was not sufficient time. Twenty-one hours is less than 2 days. Yes, the bill has been in the House for a year and it has had 21 hours—less than 2 days—for discussion, analysis, and taking of submissions. As we got deeper into the bill, and further towards its close, most parties here said they needed more time. Unfortunately, the Government chose to use its strength and numbers and run over the top of people, and that was sad.

What is good about this bill? If members look at the new definitions of what is legally recognised as genitalia in clause 3 in Part 1, they will find that the Government has simply done what it has had to do. We have recognised transsexual and transgender situations that have occurred. Ironically, the law has never protected those people. Georgina Beyer’s view at the select committee was valuable and important to us. I do not think, looking to my right here, that my colleagues in the National Party can seriously say that they object to rape being made unlawful against people who have had sexual reorientation surgery. Certainly, they cannot vote against that. To be raped has to be abhorrent for a person who has had sexual reorientation surgery as for anyone else in New Zealand. So, clearly, one has to agree with that part of the law change.

What we do take issue with is the definition of sexual connection that rape with an object is not rape. I have to ask the Government, again, whether those young boys in Hamilton who took to the young boy with the broom handle, raped him. This Government, and the Labour ladies, except for a couple I know who obviously argued against the commonly held view in caucus, say that raping men with a broom handle is not rape. They say that it is a lesser crime. They say that the young boy in Hamilton who was violated with a broom handle, who was raped, was not raped. Why? Because the Labour ladies want rape to be an exclusive crime that can only ever be perpetuated against a woman—not against a male—with a bodily part and not with an object.

Ask the young woman who laid complaints against the police that she was raped with a police baton. Is that not rape? No, according to the Labour ladies, whom John Tamihere so accurately described in the media, they do not think that being raped with an object is rape.

We have tried to argue that. We have tried to get them to change the legislation. I guess it just means that in a future coalition Government that New Zealand First is leading, we will have to come back to that issue and amend the bill. I know there are members in the Labour caucus—Georgina Beyer, Dover Samuels, and Mahara Okeroa, I believe—who do not agree with the Minister’s view and definition of rape. Yet they are being forced to accept their party’s decision and sit there quietly. At least they know how to display unity; Mr Tamihere does not seem to be able to. But they know that their party is wrong, they know that it is taking a politically correct approach to this, and they know that rape with a broom handle, a beer bottle, or rape with a police baton is rape—end of story. But this legislation states that it is not.

Let us look further down in the legislation at all the information and the detail that pertains to dealing with people under 18 for sexual exploitation. We will support those law changes. I make no bones about it, we will support the Government in passing this bill. But now I have a question from New Zealand First. This Government has a habit of passing laws and imposing more workload on the police but never doing a risk analysis or an assessment of what extra resources will be required for the police force, and giving the police those resources.

It is one thing to pass this legislation here today and say it is a crime to exploit young people under the age of 18, to put them into prostitution, or to hire them—to use them. But this Government does nothing about resourcing police so that they can get young women who are being exploited as prostitutes or as child prostitutes in the Manchester Street area in Christchurch off the street. It does nothing. Ask the police how many extra policeman they will get to reinforce this law, they will say that they will get nothing. They will have to do this, plus 2.7 million hours of traffic duty.

If one asks the police whether they ever got extra resources to police the lowering of the drinking age, they will say no. If one asks whether the police got any extra resources to police the decriminalisation of prostitution, they will say no. Then how will the police do this? The Minister in the chair, Ruth Dyson, should look at the great list of new sections in the bill. Clause 6, “New section 98AA inserted”, is a page and a half of what the Government will make illegal when it comes to exploitation of under-age women and under-age men. Where are the resources? This means absolutely nothing if the resources are not given to the police to enable them to get out and police the law, to prevent the crimes, to catch the perpetrators, to prosecute them, and to put them in jail.

What this becomes is lip service to preventing child prostitution. The Government can say that it is complying with the United Nations charter against exploitation of children and it can preach that all over the country, but it means nothing if the police do not get the resources to put this law into effect. What it tends to do is to reinforce our view that it quietly condones it, that it thinks it is OK, and that it actually does not care. It gets away with telling the public that it does care and that it is going to stomp it out, because it passed a law. But it means nothing, because it does not allocate resources to bring the law into effect, and that smacks of the “h” word, which we are not allowed to use in parliament.

I move to clause 7, “New sections 127 to 138 substituted”, which inserts new section 128A, “Allowing sexual activity does not amount to consent in some circumstances”. Subsection (3) is Dianne Yates’ contribution—and a good contribution it was: “A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.” That gets to the heart of the issue that Dianne Yates brought to the House, and those are the aspects of the bill that New Zealand First wants to support and see passed into law. But, again, we want to see the police and the resources put into the justice system to enable prosecutions against people who break this part of the law to be brought to court, and to enable these people—whom I describe as pet food, because that is the only purpose they serve in this life—to be put in jail.

It means nothing. Dianne Yates’ good work for all those years means nothing if the Government does not resource the police accordingly, and if the Government continues to insist that what the police should be doing is issuing traffic tickets. They have spent 2.7 million hours doing that—386 hours per policeman and policewoman, regardless of whether they are sitting in police headquarters shining their seats or are out on the road, dedicated to doing traffic duty and not this kind of stuff. This is real, hard-core crime.

We will be looking with interest at the Budget to see just how many dollars and how many policemen and policewomen will be devoted by this Government to ensuring that clause 6 is enforced—not just passed and enacted. There have been no prosecutions for exploitation of child prostitutes in Christchurch. I am looking forward to hearing next year that there have been 15, 20, or 30 prosecutions, particularly in the Minister of Police’s electorate, because the bottom line is that if there are child prostitutes in his electorate, how many more are there throughout the rest of the country?

I will start by saying that reform of the criminal law is always serious and significant work. The Hon Tony Ryall, in his comments in the Committee stage, said there were a number of questions that the Minister of Justice, Phil Goff, should properly explain, and he elaborated on some of those questions. But I doubt that the Minister has the ability to provide the answers to even a few of those questions. In the one outburst he did deliver, he described incest as a defence. Even a first-year law student would know that incest is, in fact, a crime. It is also a pity that the Government wants to bolt through this bill in urgency, and has not accepted the view of the Opposition that it would be appropriate for the debate to be taken on a clause by clause basis. If that had been possible, National could have indicated where it supported particular provisions. Instead, we are having a part by part debate on a bill that has only two parts.

The reality is that this bill is like the curate’s egg—good in part and bad in part. The current minority Labour Government expresses a nominal commitment to law and order, but that commitment is long on rhetoric and short on action. If members of the Committee are wondering whether that is fair comment, I would say that it is because political correctness seeps through the agenda of the Government in this area as it does in many others. I will give four quick examples in the short time I have.

We have already heard that the Minister approved a discussion document legalising brother-sister sexual relationships. Now, it is quite correct that that discussion document and the specific proposal did not find its way into the bill. But a wise-thinking Minister, in this particular area of the criminal law, should never have allowed that proposition to emerge in a Government discussion document. [Interruption] Because I am being interrupted, I say again what it was that the Minister approved. He approved a discussion document proposing to legalise brother-sister sexual relationships for those over 20. In the end, the Government backed off. That proposal should never have been advanced.

Another example, a timely one in the context of one member sitting in this House, is the Human Rights (Gender Identity) Amendment Bill—a member’s bill, albeit sanctioned by a majority of the Labour caucus—that would permit, on a basis that would not permit discrimination, cross-dressing in the police, the military, and classrooms.

The third example relates to the similarity of age defence for under-age sexual activity. National and the public forced the Government to drop that highly controversial clause. It would have given a defence when there was consensual sexual activity between 12 to 15-year-olds. It was opposed by mainstream groups, but supported by the Minister in charge of this bill, Mr Goff, the Labour Cabinet, and the AIDS Foundation. If I take a final, fourth, example, it is the proposal to scrap rape as a gender-based offence. In the result, the Government has backtracked on that, because a majority of the committee endorsed: “… the offence of rape being retained as a gender-based (male-on-female) form of sexual violation effected by penile penetration of a woman’s genitalia.” But there was a proposal to cast away that offence of rape and instead merge it into a wider grouping of sexual offences.

I would like to speak for one more minute about what troubles me about this legislation in a broad way. It is well identified in the general policy statement that lies behind the bill. The general policy statement reinforces the view: “… that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:”—I am reading from the general policy statement in the explanatory note. Most of us would think that what we are really about is significant reform of criminal law in the area of sexual criminal activity. To paint the legislation as being an entitlement for people to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex, is incredibly irresponsible.

This is supposed to be criminal legislation. It is intended to deal with offences that violate community standards and are abhorred by right-thinking members of the community. It should not have policy objectives of that particular type. National has said repeatedly, in the short period the Committee stage has occupied, that the bill should have been subject to more consultation. There should have been far wider community and legal consultation. The Government had an opportunity to do that. It chose not to do so. I believe that there will be, as a result of that decision, significant unintended consequences.

We see in so much of the legislation that has been before Parliament in this session instances whereby significant errors have occurred through inadequate consideration. This bill will prove to be one of those examples. Another illustration is the Foreshore and Seabed Act. As that legislation was originally enacted there was a provision that vested all the reclaimed land of the Wellington City Council in the Department of Conservation. That all had to be undone at the rate of knots in legislation passed a few days later. Again, we see obvious multiple flaws in the Building Act.

The problem, in simple terms, is this: when one goes about reforming criminal law, it should not be done on a patchwork basis. Why do I say that? Because chunks of work should not be taken out for separate consideration. Criminal law in general terms should be seamless. If it is broken up in the way that this bill has done, with different parliamentary counsel engaged in different sections of the work, the result, obviously, will be that errors are likely to creep in. And so they will.

I am pleased to take a brief call on the Crimes Amendment Bill (No 2) in the Committee stage. I first of all acknowledge what Ron Mark said in his speech and refer to some of the matters he raised. I have to say that I agree with him regarding rape. I am certainly glad that we had the possibility to include the transgender and sexual reassignment provisions in the bill regarding that issue. I did take a universal view that rape was rape, whether by bodily penetration or with an object, but there is a difference between rape and sexual violation in the law. I was informed at the Law and Order Committee that sexual violation still held the same punitive penalties; it is just the title that differs. So I did, obviously, end up supporting that view, although I was uncertain about it at the time.

I will just refer to Mr Richard Worth who—kindly or not—raised the issue of my member’s bill, the Human Rights (Gender Identity) Amendment Bill. He seems to be going on with this mantra about cross-dressing. I would remind the member that, decades ago now, it used to be against the law for men to wear women’s underwear. That was absolutely ridiculous; the law is long gone from the statute book of this country. I have known people who were arrested for that. I know of transgender people who used to have to go to Mojo’s drag nightclub in Auckland dressed as a man, they could dress as a woman and do their entertainment show there, and they had to change back into men’s clothes again when they left. That is absolutely ridiculous. The Government of the day obviously thought so 30 or 40 years ago, and it repealed the law. The way that Mr Worth made reference to cross-dressers with that real “Ew, yuck!” flavour to it really shows just how minimal his knowledge of cross-dressing is.

Of course, one thing I remind the Committee of is the famous photograph of a former member of the National Party, John Banks—who now hopes to be the leader of the ACT party—in his tutu when he was a Minister in this Parliament, I understand. He was a great example, but would we have wanted him discriminated against for doing that? Some may say “Yes”. There was also a very celebrated police commissioner by the name of Rob Moodie who wore kaftans. He was celebrated and famous for it. That could be termed cross-dressing. Should he have been discriminated against? No, I do not think so.

Anyway, I will not continue on that line, because it is a little off the bill. But I look forward to the debate when my Human Rights (Gender Identity) Amendment Bill has its first reading, hopefully after the next election.

It has been a very interesting morning listening to all the contributions. I will take just a moment to correct the member who just spoke, Georgina Beyer. Rob Moodie was the president of the Police Association, as I recall, not the police commissioner, which is quite a different role altogether. I cannot quite imagine the current police commissioner in a kaftan, but one never knows. As long as it does not hurt other people, it is fine with me.

I come back to the more serious issues. I have been wondering why the Government has not changed this bill, given all the very good contributions from members about the deficiencies in it. Even members who will support the bill have pretty much the same complaints about the deficiencies. I wondered why the bill had been on the Minister’s desk for the last 6 months, and then the answer came to me, as clear as a bell. Mr Tamihere told us what it is. It is because the Labour caucus is so split down its politically correct lines that it cannot get the bill back to caucus for agreement. Obviously, that is the answer.

The Hon Tony Ryall mentioned some of the offending parts in the official documents on this bill. I will read them out for the benefit of the Committee: “The ministry proposes, however, that any brother-sister sexual connection involving abuse of trust, authority, or dependence, where one of the parties is under 20, be covered under the proposed offence of sexual connection.” In other words, for anyone over the age of 20, brother-sister incest would be just fine.

This is the sort of nonsense that a politically correct Government, driven by various special interest groups, would go along with. How many people who voted Labour in the last election—nice decent people who look after their kids and pay their taxes—would have signed up to that sort of nonsense? But we should say: “Good on you!” to the Minister, because he did say, eventually, that he would not go for that—we know he did not agree with it. But, by goodness, we know how this Government works. It puts up these ideas, then we come out and say: “That’s shocking.”, then the Government sees what the people want to do, then it looks at the polls, and then it decides whether it will go ahead with the idea. This Government has a real problem making any negative value judgment—that is what it calls it; a “negative value judgment”—on any sort of lifestyle issue.

💬 Dr Wayne Mapp: Anything goes.

Anything goes, and the only time it makes a negative value judgment is when somebody stands up and says: “No, actually, it’s not OK to do that to our communities.”

I say again to the parties in this House who are voting for the bill that I cannot understand what in the bill they could possibly vote for. Indeed, there are some good things in it but they are so small compared with some of the bad things in it. My colleagues Dr Wayne Mapp and the Hon Tony Ryall have both put forward substantial amendments to try to make the provisions in this bill a little more sensible. But the Minister will not vote for them. We know that. He will not vote for anything like that, because it is a bit too sensible. He does not want this bill to go back to the select committee. He talked about how the committee had spent 1 day—24 hours—on this particular provision.

💬 Ron Mark: It was 21 hours—less than a day.

Oh, it spent 21 hours on it. It spent less than a day’s hearings on it, spread over 2 days. That is nothing compared with how important these provisions are. It is a remarkable thing that the Minister can say the select committee had plenty of time. I certainly sensed from the plaintive little cry from Martin Gallagher, the chair of the committee—the plaintive little male cry from the back benches of the Labour Party—that there was not sufficient time. He certainly came across that way when he made comments like: “We really did have a lot of good discussions.”, and “I’d really like to sort of thank everybody.”, and “There were lots of issues that we couldn’t quite resolve.” He came across as saying: “There are lots of issues that aren’t particularly right but I got bullied into it, because I can’t take it back to caucus.” Poor old Mr Gallagher! What else can we say.

The previous speaker said she did not know why some parties were voting for the bill and, no, it is not a perfect piece of legislation, but it has been around for a year. In my view, a consideration of 12 months is not indecent haste.

If the bill goes back to select committee and if it goes on with more public consultation, more children will be abused while that happens. While we delay and kick the child sexual abuse issue around like a political football, more and more children are abused, and the effect on those children for the rest of their lives is absolutely appalling. This is not a crime like any other crime. The effects are far-reaching and they affect all of society.

Victims of child abuse do not care about whether crime legislation is being overhauled on an ad hoc basis or on a perfect basis; they do not take those sorts of things into account. All they think about is what they are going to do next—even how they are going to get out of bed in the morning. Children do not have the vote. It is our responsibility to protect them; they do not march down the street and demand better laws.

I support what Ron Mark said, that men who use child prostitutes should be prosecuted. They should have the full force of the law brought down on them. But who can say that being a child prostitute is a lifestyle choice? The reason those girls are child prostitutes is that they have been sexually abused in the past, usually by family members or someone known to them. That is how the majority of child sex crimes occur; they are committed by people who are known to the victim. The people who snatch the Teresa Cormacks off the street are rare. Those offences are usually committed by clergyman, teachers, doctors, JPs—respected, honoured members of society. If we go on delaying legislation like this just because it is not perfect, those children will continue to be abused.

ACT will be supporting the amendments on sexual grooming. That is an insidious crime, and we need only to look at the actions of one Peter Liddell to see the destruction that that man has brought about. For example, with regard to Jenny Anderson’s talkback show on Radio Pacific, when Peter Liddell had name suppression lifted in the Court of Appeal, that came on the news at 1 o’clock. At quarter past one a woman rang. I will not say her name, but she did say it on air. She was crying, and she said she had just heard the news that the name suppression on Peter Liddell had been lifted. She talked about her son, who had been counselled by Peter Liddell. He was a young Māori boy, and Peter Liddell favoured vulnerable young Māori boys. Her son kept coming home saying that Peter Liddell was sexually abusing him, but the woman said: “We didn’t believe him. Peter Liddell was the man in the white coat, the trusted counsellor.” This woman had just found out that her son had been right. Jenny Anderson asked: “Where is your son now?”, and the woman said: “He killed himself, because no one would believe him.” That was the most damning indictment I have heard on sexual grooming.

I also support the amendment that makes rape gender-neutral. I do not see why men should not be convicted of raping other men.

The matter that concerns me in this legislation is that we seem to be over-addressing issues that are already taken into account by the courts. For instance, there are already convictions for mistaken identity.

If we look at some of the cases in my books, we see that there are cases of men who have been prosecuted because they have climbed into bed with a woman when she has been asleep. She has often gone to sleep because she has drunk too much, but that is no excuse for someone to get into bed and start having sex with her, pretending he is her husband. When she has woken up and discovered the person is not her husband, the person has been prosecuted and sent to jail. The same outcome has applied to cases concerning drugs. Judges have taken the view that those people could not consent because they had drunk too much or been drugged.

We have moved on so far in this country when it comes to the prosecution of sex crimes, because once we would have had the attitude that those women deserved it. Thank goodness we do not have that attitude any more, and that we do take the attitude that no matter what a woman does—whether she goes out wearing a short skirt and a low cleavage, whether she drinks too much, or whatever—she does not deserve it, just as a man who walks down the street in an Armani suit with a wallet-full of money does not deserve to be robbed. We do not take that attitude.

The other irony, while I am on that subject, is to ask why it is interesting that when men wear skirts they are cross-dressers, but when women wear trousers they are not.

The National Party in Opposition has been highlighting what we think are a number of deficiencies in the bill. We have a very real fear that the Government’s intentions in this bill could very well backfire. We think there could be unintended consequences based on changing definitions and settled understandings in case laws. We think there are likely to be problems because of some of the new legal concepts being brought in, particularly regarding dependent family members and people with disabilities. We are very concerned about those matters.

I was on the Law and Order Committee. I know that we were working to a time line. I know that we had Government members forcing our considerations at every opportunity. Throughout that time the New Zealand First, National Party, and United Future members were saying that we should have more time on the bill, that we should be calling for more submissions, and that we should be making sure that we get it right. Many people, including members of the Law Society, lawyers involved in other matters, and sexual abuse workers, came before the committee and made the point that there could be new uncertainties created because of this legislation, so the committee must get it right.

We are genuinely worried that this bill will not achieve what the Government wants. We have no confidence that the officials’ advice is necessarily right, nor that the Government has got it right. We asked one of the officials what the word “whānau” meant in the bill. Do members know what the answer was? It was: “People who live on a marae.”

💬 Ron Mark: That’s right.

That is what they said. Mr Mark confirms it.

That is why we are so worried about the consequences of this legislation. Richard Worth was right when he said that many changes to the criminal legislation in New Zealand are done like a patchwork quilt. That is why we are saying that this bill should go back to the select committee and be worked on again.

We are worried about provisions about dependent family members such as the age limit that prohibits sexual contact between those who have been in a care and protection type of relationship being dropped from 20 to 18. The reason why it was 20 was to allow for sufficient time to elapse and for the dependence relationship to wane. By the age of 20, most people will have moved away from home, or had a couple of years of being away. Alternatively, there are some issues about kids who come home from university study and about what sort of relationship that will be. So we cannot understand why the Government would drop that to age 18 and allow a situation where, for example, a foster parent will be able to have consensual sexual contact with an 18-year-old foster child for whom he or she may have cared for many years. The Government is also passing sexual grooming amendments, but it seems to me that the potential of this provision needs to be looked at. Most submitters wanted the age kept at 20, but the Government chose 18 and we have not had a proper explanation of that from the Government. We do not know what impact this new definition of “dependent family member” will have. A dependent family member is someone who will be prevented from sexual conduct with members of the same family, whānau, or culturally recognised family group that has responsibility for his or her care or upbringing.

The Māori members of our committee were also very concerned about this, because Māori have a different view from that of the nuclear family that people are more aware of—depending on their background—on the role of relatives in the upbringing of children. I thought that was a valid point. We tested the officials and the Minister’s advisers as to what that would actually mean, and I have to say that we were not comfortable with the answers we were given. We think there is quite a risk that judges may end up taking quite unintended views on what those matters are, and that is why we raised those points. We are quite worried about them.

We have not had an explanation from the Minister in the chair, the Hon Phil Goff, about the changes that have been made concerning people with disabilities. Currently, it is a crime to have sexual intercourse with a woman or girl who is severely subnormal. It is understandable that the Government would want to modernise the language and concept in light of the much better attitudes people today have towards those with disabilities. But there is a real risk that this bill will create considerable confusion and uncertainty through its new and unproven wording. Frankly, I do not think the select committee has done a very good job in getting to the bottom of what that wording is. We did not spent a lot of time on that, and we should have spent more.

The Law Society warned the select committee that there would be a forensic lottery—that is the term it used; a “forensic lottery”—as juries are “confronted with arcane evidence from opposed camps of experts” attempting to argue concepts like “an understanding of the nature and consequences of sexual conduct”. That is new. We are not sure how that will be applied in the courts—and one cannot be, until it happens—but no member of that committee can stand here and say that he or she is confident that the intention of Parliament is enshrined in those words. Indeed, the officials advised the committee that leaving it to the courts to address the problem would probably be the best course of action. Parliament should not be operating on that basis.

The Minister also needs to have a discussion with the Committee on the issues relating to the changes made in the area of consent. Consent has a very settled meaning in the common law, but this bill takes the step of deeming what does not amount to consent—and if one was going to take an approach, I presume that would be it. Concern was raised by a number of submitters as to the lack of precision in these provisions. Although the Minister may not be aware, submissions noted that certain types of drugs associated with drug rape can lead to a person appearing completely in control and rational, and consenting to sex in situations where consent would normally be withheld. Lawyers came before us and said that the definition of what is not consent may cause more confusion than clarity. Again, we think that referring the bill back to the select committee and calling for expert evidence would get that right. There are some arguments for pressing ahead with even flawed legislation, but we fear that the risks associated with this legislation do prevail upon us to raise these questions and express these doubts about this bill.

We think there are many meritorious provisions in this bill. We would have liked the opportunity to have a clause by clause debate and a vote on each clause. By doing so we feel we might have been able to make some progress in improving the bill and in getting to the core of the Minister’s motivations in the various parts. But we have been denied that opportunity.

We are very worried about those unintended consequences and the changes that are being proposed in this legislation. We know that a discussion paper was released in 2002. We know that that discussion paper included proposals to decriminalise some sexual activity between 12 to 16-year-olds. That paper was approved by Cabinet.

💬 Dr Wayne Mapp: By Mr Goff.

It was put in the bill by Mr Goff, and frankly—

💬 Hon Phil Goff: It was never put in the bill. It was a discussion paper.

Decriminalisation of sexual activity for 12 to 16-year-olds? The officials’ advice is here.

💬 Hon Phil Goff: No, no, you were talking about the other issue.

No, I was not talking about that. I am very well informed about what is in that discussion paper.

Mainstream New Zealanders do not support the decriminalisation of some sexual activity by those between 12 and 16 years. Ordinary people were outraged by the suggestion that that activity could be decriminalised. But what worries us more is the issue of what other little word changes in the bill there are that may cause trouble. I think that sending the bill back to the select committee for a few extra weeks would have given this Parliament a much better piece of legislation.

I listened carefully to the member who has just resumed his seat, and by and large he was, of course, repeating comments he made in earlier calls. I have answered a great many of those so I will not repeat myself in that regard, but I raise just the question of the age of consent. I think every member in this House believes that the age of consent should be at least 16. Children who engage in sex under that age risk doing real damage to themselves emotionally rather than simply physically, because they are not ready for the emotional side of that sort of relationship. So naturally I would take offence if the member was intending to say that any other member of this House believed that under-age sex was a good thing—we do not.

What I have done in this legislation is considerably toughen the penalties for having a sexual relationship with somebody under the age of 16. We have increased the penalties. The maximum jail sentence has been increased from 7 to 10 years. We have removed the protection that people had before, whereby if one did not bring a case within 12 months, then the offender would escape scot-free even if there had been a predatory relationship between a much older male and a young girl. So we have taken the law further than it has ever been taken before. But we also made the point that of course it was not our intention to see two 15-year-old teenagers, experimenting in a sexual relationship, locked away for 10 years. Nobody in the House thinks that that is a sensible idea. Nobody in the country thinks that that is a good idea, and that can be taken from the fact that the police simply do not bring prosecutions. Parents do not take kids to court because they are indulging in under-age sex. Schools do not try to take this matter up through a pathway of prosecution.

Originally, the bill contained the same defence that California has, that Victoria has, that Canada has, and that a great many Western jurisdictions have, which is to say that if there is a close similarity of age, then that would be a defence that might prevent imprisonment. I would have stuck with that defence if I had thought it was necessary, because I do not want to see 15-year-old kids who are experimenting in sex locked up in jail—nobody does. Nobody in this House wants to see that. I know that basically the police will follow the same practice as they did before and they will not take that action, but the “similarity of age” defence was a protection against that happening. That was deliberately misconstrued.

I have a quote here from Russell Brown, a well-known media commentator, who says: “I’m afraid Ryall knows very well that what he is saying is untrue, and scurrilously so.” I think we all know that that was politics, but the politics played out its role. We have removed that provision, and kids will not be prosecuted when they should not be. The member should not pretend to the Committee that this was anything other than simply a bit of grubby politics, because that is obvious to all of us.

The member raised a question about unintended consequences. I thought Mr Ryall wanted answers to his questions, but clearly he does not. He has walked out, so I will not bother with him. I would like to come back to the point made by Deborah Coddington.

💬 Hon Tony Ryall: I raise a point of order, Mr Chairperson. A member— particularly a Minister who has been out of the debating chamber during most of the debate on his own bill—cannot refer to the absence of a member,.

Speaking to the point of order, Mr Chairperson, I was answering the member’s questions in good faith. I have a list of the questions he has raised and I was going to go through them point by point. Surely under the Standing Orders it is grossly discourteous for a member who has asked questions, and taken up the time of the Committee, then to walk out as soon as the Minister gets to his feet to answer them.

The CHAIRPERSON (Hon Clem Simich): It may be discourteous, but it is wrong and against Speakers’ rulings to refer to a member leaving the Chamber. We will just proceed as we were.

I was about to address my comments to Deborah Coddington, who I thought made some very sincere and good points about the legislation, what it intends to do, and about the appalling situation that occurs in our community, including the case of Peter Douglas Liddell, whom I tracked earlier in my career in Parliament. I was appalled at the incredible damage done by a man like that. In my opinion no law can be tough enough to deal with a man who blights people’s lives and, in the incident she referred to, led to the suicide of a young man who was offended against and then disbelieved. People who act in this way as predators act in a way that gives them credibility. They are often respected figures. He was a counsellor at King’s College, and a child would not be believed against a man in that position. I deplore that sort of behaviour, and this legislation, in so far as it toughens up the penalties against those people, is well merited, and I will be pleased to have the support of members for it.

Deborah Coddington raised a question about suppression orders. Suppression orders generally should not be relied on. In fact, only in about 0.4 percent of cases suppression orders are issued, and they are largely in cases where it is the intention of the court to protect the victim. However, I think that Ms Coddington made the fair point that sometimes the victim does not want that form of protection, and the court is imposing it against the will of the victim. That is why I amended the Criminal Justice Act back in 2002 to require the court, when seeking name suppression for the accused, to take into account the views of the victim.

Clearly, that was a message to judges. If the victim says: “Look, I might be the daughter of this person who is supposedly a respected pillar of society, but I want the world to know what he has done, and if the price of that is to expose me as the victim, I am prepared to pay that price.”, then the court should heed the views of the victim. I think that that is very important.

Finally, I will just touch on the question of the definition of rape. I know that a number of members—Sue Bradford, Marc Alexander, and I think Ron Mark has indicated support—have, in good faith, said that they wanted a change to the definition and that a variety of other things should be regarded as rape. The select committee considered that very carefully, and I have no fundamental opposition to what each of the members is asking for, but each of the solutions has inherent in those solutions its own problems.

The fundamental point is that whether it is rape or sexual violation by unlawful sexual connection, the penalties are exactly the same, and I think everybody understands that. I want to put on record for the courts, which do refer to the Hansard of the debates, that this is the intention of Parliament, and whether it is a male sexually violating another male, or whether it is oral, anal, or vaginal, the penalty should be the same regardless of the gender of the offender or the nature of the penetration that is committed. The law provides that the offence is the same in every case. So we get down to what terminology we should use. We thought about extending the definition of rape so that it could include male on male, and I looked very carefully at Sue Bradford’s amendment, but then I am left with all the questions at the end of it. Yes, I could live with all of that, but then what about penetration with an object? Should that be rape? That is not covered by the member’s amendment, which I have looked quite closely at. Maybe it was intended to be covered.

💬 Sue Bradford: Yes, subsection (1)(a).

I will take the member’s word for that. But in the end there was not a consensus on this matter at the select committee, and in an area where I believe we should try to find a consensus, if we cannot do so we stick with the status quo. I am comfortable with the status quo in the sense that it does not affect the penalty that applies to any of the forms of offending that have been discussed by members and in their amendments. I respect their points of view. I am not strongly opposed to what they are advocating. I have searched for a consensus. The wider consensus at this stage that I have found is around maintaining the status quo. I accept that, and for that reason I will, with some regret, not be advocating support for the amendments moved by various members on that issue.

I wish to take just a minute to reply to the Minister, whose sincerity I accept. I actually know him personally and I think I have a very good understanding of his views, but I have to say that it is not good enough to say there was a majority in the select committee that supported the status quo. If one looks at the party situation, the Labour Party members were the only members on the entire committee who held that view. The select committee is made up of members of the United Future Party, the Green Party, the New Zealand First Party, the National Party, and the Labour Party, and it is on record that four of the five parties said that this definition should change.

Labour can get away with a little bit of fudging here, but the fact remains that it has stacked the committee with its numbers. It has stacked the committee so that it gets the outcomes it wants and it is bullying its way through this. The Minister should take a wider view. If four of the five parties in this Parliament can agree that generally what the Government is doing is right, but that on this particular definition it is wrong, then why can the Minister not be magnanimous, accept defeat, and go with the majority party view?

We know that the Government has the numbers and can force its way. It does not have to, because when we get outside this Chamber it will be dealing with it, anyway, because United Future, the Green Party, the ACT party, the National Party, the New Zealand First Party, and the Māori Party will all be out there during the election saying that Labour was wrong. There will be only one party that says that the definition is right, and that is the Minister’s party. The tragedy is that within his own caucus we know there is a difference of opinion, and he should listen to it.

Sitting suspended from 1 p.m. to 2 p.m.

Progress reported.

Report adopted.